Opinion
2d Crim. No. B299093
07-02-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER GASTON, Defendant and Appellant.
Mark D. Lenenberg, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2016027086)
(Ventura County)
Christopher Gaston appeals his conviction by jury for first degree, premeditated murder by lying in wait (Pen. Code, §§ 187, subd. (a)(1), 189, 190.2, subd. (a)(15)) with special findings that he shot a firearm from a vehicle (§ 190.2 subd. (a)(21)) causing death or serious bodily injury (§ 12022.53, subd. (d)). The trial court sentenced appellant to life in state prison without possibility of parole but failed to award presentence custody credits. (See § 4019, subd. (a)(4).) The Attorney General concedes that appellant should be awarded 1,070 days presentence custody credits. We modify the sentence to reflect that appellant was awarded 1,070 days custody credit. We affirm the judgment as modified. (§ 1260.)
All statutory references are to the Penal Code unless otherwise stated.
Facts and Procedural History
On June 25, 2016, appellant shot and killed a rival drug dealer, Christopher Camper, at an Oxnard bus stop in front of a strip mall at Ventura and Gonzales Roads. Appellant, a drug dealer, was robbed by Camper in 2004 and had a long standing feud with him.
Minutes before the shooting, appellant, Ashley Cain (Ashley Brown) and appellant's longtime friend, Ramel Brown, had stopped at the strip mall. As they were leaving, Camper approached the car, waved his arms, and exchanged heated words with its occupants. The argument was captured on a store surveillance camera.
Ashley, Ramel, and appellant drove back to Ramel's home, a few blocks away. Appellant immediately got into his Cadillac and drove back to the strip mall armed with a .45 caliber revolver. Appellant had a pronounced limp, got in and out of the car, watched Camper and adjusted his waistband as if he had a handgun. About ten minutes later, appellant drove out of the parking lot and up to the bus stop where Camper was standing. He fired five shots. Three bullets struck Camper, killing him. Witnesses heard the shots and saw the Cadillac speed away.
Tanja Shirley heard five shots fired in quick succession and saw gun flashes coming out the passenger side of the Cadillac. Shirley called 911 as the Cadillac sped off. Shirley said that Camper was talking on his cell phone before he was shot and was not holding a weapon.
Before the shooting appellant told Ramel that "he was gonna go back and get [Camper]."
Vanessa Garcia drove by the bus stop and saw Camper leaning against the bus stop. Appellant drove up to the bus stop and started shooting. Garcia called 911 and gave the police a physical description of the driver/shooter. Camper did not have a firearm or approach the Cadillac before he was shot. Garcia said the driver was "[c]alm. He just drove off like nothing happened."
Timothy Bruneau was at the stop light and heard five shots fired from the Cadillac.
Appellant hid the Cadillac in his garage and borrowed Leslie Horner's Ford sedan. When Horner tried to discuss Camper's shooting death, appellant responded: "'That's what that bitch ass n gets 'cause he was going around robbing people.'" Horner was scared and asked for her car back. Days later, the Oxnard Police Special Enforcement Unit identified appellant's Cadillac in the video surveillance footage.
On July 15, 2016, officers obtained a search warrant and searched appellant's apartment. They found paraphernalia for packaging marijuana, a revolver speed loader, a tool for assembling firearms, a firearms training manual for close quarters combat, and human silhouette targets with bullet holes at the center mass. In appellant's garage, officers found the Cadillac with a bullet lodged in the interior B pillar on the passenger side.
Appellant defended on the theory of self-defense and imperfect self-defense manslaughter. He stated that he sold drugs and testified that Camper was planning to rob him. The day of the shooting, appellant thought he lost his cell phone and drove back to the strip mall to look for it. Camper flagged appellant down in front of the bus stop. Appellant thought Camper was armed, heard a "pop," and saw Camper holding a handgun. Appellant fired one or two warning shots but Camper "was still sitting there pointing the gun at me and coming towards me." Appellant fired three more shots and sped off.
Appellant drove back to Ramel's house, found his cell phone, and decided not to call 911. Appellant stated that he disposed of the expended shell casings, and had a friend get rid of the .45 caliber revolver.
Victim's Prior Bad Acts
Appellant contends that the trial erred in excluding evidence of Camper's violent acts against third persons. The trial court ruled that Camper's gang membership and prior violent acts against appellant were admissible but excluded unknown violent acts pursuant to Evidence Code section 352. Appellant argues that the ruling violated his constitutional right to a fair trial. This issue is forfeited because appellant did not object on that ground. (Evid. Code, § 353; People v. Brown (2003) 31 Cal.4th 518, 546.)
On the merits, the trial court reasonably concluded that the probative value of the prior violent acts evidence would necessitate undue consumption of time and create a substantial danger of undue prejudice. (Evid. Code, § 352.) The evidence was not relevant to show appellant's state of mind, would confuse the jury, and was more prejudicial than probative. (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828.) Appellant argues that the ruling violated his constitutional right to present a defense but "the routine application of provisions of the state Evidence Code law does not implicate a criminal defendant's constitutional rights. [Citation.]" (People v. Jones (2013) 57 Cal.4th 899, 957.) Camper's prior violent acts were relevant to show appellant's state of mind at the time of the shooting, but only if appellant knew about the prior violent acts. (See, e.g., People v. Minifie (1996) 13 Cal.4th 1055, 1065.) "Indeed, as the People note, the reasonableness of a defendant's beliefs is necessarily determined by what he is aware of, not from circumstances entirely unknown to him." (People v. Bates (2019) 35 Cal.App.5th 1, 10.) The law of self-defense "'recognizes that the objective component is not measured by an abstract standard of reasonableness but one based on the defendant's perception of imminent harm or death. Because his state of mind is a critical issue, he may explain his actions in light of his knowledge concerning the victim.' [Citation.]" (Ibid.)
The alleged error, if any, in excluding the prior bad acts evidence was harmless under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt standard for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a more favorable outcome standard for state law error].) The self-defense claim was refuted by the video surveillance footage and three eyewitnesses. Vanessa Garcia saw appellant drive up to the bus stop and shoot Camper who was not armed. After the shooting, appellant hid the Cadillac, borrowed a friend's car, destroyed the spent shell casings, and had a friend get rid of the revolver.
Defense witness German Longoria did say there was a confrontation, that Camper drew a handgun and fired two shots, and that appellant returned fire. But a few days after the shooting, Longoria told Oxnard Police Detective Edgar Fernandez that Camper drew a handgun but did not fire. Detective Fernandez revisited the crime scene and determined that Longoria was 200 feet away from the shooting. Detective Fernandez opined that it was "highly improbable" that Longoria saw what he reported. He tried to interview Longoria a second time but Longoria did not return his calls. A second investigator, Paul Walsh, interviewed Longoria and asked if he really saw Camper draw a handgun. Longoria answered "Ah, no" and said that he was "pretty far away from where it happened." It was damning evidence. The alleged erred, if any, in excluding Camper's prior violent acts of which appellant knew nothing, was harmless beyond a reasonable doubt.
Evidence of Firearm Materials Found in Appellant's Home
Appellant contends that the trial court erred in admitting evidence that firearm paraphernalia (a speed loader, a tool to assemble firearms, a firearms training manual, and human silhouette targets with bullet holes) was found in appellant's apartment. The evidence was admitted to show intent, and the ability and opportunity to carry out the shooting (i.e., ready access to a firearm). Appellant did not object and is precluded from arguing, for the first time on appeal, that the evidence violated his constitutional right to due process and a fair trial. (People v. Partida (2005) 37 Cal.4th 428, 434 [specific objection is required so that the trial court has "'a concrete legal proposition to pass on'"].) "A party cannot argue the [trial] court erred in failing to conduct an analysis it was not asked to conduct." (Id. at p. 435.)
Appellant claims he was denied effective assistance of counsel but the Sixth Amendment does not require trial counsel to make futile or frivolous objections. (People v. Osband (1996) 13 Cal.4th 622, 678.) To prevail on the claim, appellant must prove prejudice that is a "'demonstrable reality,' not simply speculation . . . ." (People v. Williams (1988) 44 Cal.3d 883, 937; Strickland v. Washington, (1984) 466 U.S. 668, 687.) "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Ibid.) An appellate court may not speculate as to the effect of the errors or omissions of trial counsel. (Williams, supra, at p. 937.)
The firearm evidence showed why appellant carried a handgun and corroborated evidence that appellant was a drug dealer, armed himself to avoid being robbed, and had the ability and opportunity to carry out a close-quarters, premeditated murder. In the words of Ramel, appellant's best friend, appellant "was gonna go back and get [Camper]." Irene Marquez, an ex-girlfriend, testified that appellant always carried a handgun, even when exercising at the gym.
Appellant stated that he started carrying a firearm after a 2004 home invasion robbery and feared Camper would rob him again. Appellant admitted that he had a loaded .45 caliber revolver in the Cadillac and used it to shoot Camper. The prosecution theory was that appellant stalked Camper and committed a lying in wait murder. Defense counsel, for tactical reasons, may have decided not to object to the firearm paraphernalia evidence because it supported the defense theory that appellant feared for his life, panicked, and shot in self-defense. Counsel argued that appellant was not a great shot even though "he's three feet away from Mr. Camper . . . ." Appellant was "not required to retreat. He tried to. He says the car was in park. He hit the gas." It was a possible defense but the jury did not believe it. On review, we do not second-guess trial counsel's reasonable tactical decisions. (People v. Kelly (1992) 1 Cal.4th 495, 520.) Appellant makes no showing that trial counsel's performance denied appellant a fair trial or that but for counsel's unprofessional errors, appellant would have obtained a more favorable verdict. (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 (Doolin).)
Prosecutorial Misconduct
Appellant asserts that the prosecution committed misconduct by disparaging trial counsel. Appellant did not object or request a curative admonition, thus forfeiting the issue. People v. Hoyt (2020) 8 Cal.5th 892, 952.) On the merits, appellant makes no showing that, given the context of the prosecution's entire argument, there was a reasonable likelihood that the jury understood or applied the complained of comments in an improper manner. (People v. Beck and Cruz (2019) 8 Cal.5th 548, 657.)
The prosecutor argued that appellant had lied and "[n]othing he said about the actual moment of the shooting is supported by the facts . . . and the other credible witnesses." "So there's objective truth, which we've shown through multiple layers of witnesses and corroborated evidence, and then there's the subjective lies and subjective speculation that the Defense is going to want you to rely on." In response, defense counsel argued that the prosecution presented evidence to bias the jury and the prosecutor "asked you not to follow the law." "Mr. Gaston and I would like you to focus on just . . . the truth . . . ." Trial counsel conceded that appellant occasionally "went overboard" in answering questions but "I kind of brought him back . . . ."
In rebuttal, the prosecutor argued: "I'm not going to . . . scream and yell at Mr. Lehr [defense counsel] like he did at me." The prosecutor argued that appellant's testimony was "preposterous" and "they're fashioning their defense and they're trying to manipulate." (Italics added.) Appellant was told "you're gonna have to take the stand. You're going to have to say you were there."
Defense counsel objected "this is improper." Sustaining the objection, the trial court ruled, "We'll omit the word 'they' from that argument."
Resuming his argument, the prosecutor said that appellant's testimony was pieced together to explain away the highly damaging surveillance video footage and eye witness testimony. "[Appellant] takes the stand. He's got to put himself there because we got him there dead to rights so he can't say he wasn't there. [¶] He's got to say he had a gun because we got that gun in that car. He's the only guy in that car. So he's got to admit killing Chris Camper. And so now he's painted [himself] into a corner. . . . [¶] Well, Camper had a gun. . . . [N]nobody saw Camper with a gun except this weirdo German Longoria who was way too far away to see anything . . . . [¶] And now they're trying to play both sides and argue this voluntary manslaughter stuff off of a mistaken belief of Chris Camper being armed." (Italics added.)
Defense counsel did not object or request a curative instruction, forfeiting the alleged error. (People v. Gurule (2002) 28 Cal.4th 557, 651.) The prosecutor argued "they" crafted the self-defense claim, which a reasonable juror could construe to mean that appellant and his friend Ramel concocted a story before trial. Minutes before the shooting, appellant told Ramel that "he was gonna go back and get [Camper]." Ramel spoke to appellant almost daily after appellant was arrested, but at trial, pretended not to know that appellant drove a Cadillac. Ramel claimed that appellant said nothing about the shooting. On cross, Ramel admitted that he and appellant discussed the case "often." Evidence was also received that Ramel intimidated and tried to influence the testimony of Ashley Cain and Halbert Atkins.
The prosecutor's rebuttal argument was fair comment of the evidence and did not cast aspersions on defense counsel. (See, e.g., People v. Johnson (2015) 61 Cal.4th 734, 783; People v. Mendoza (2007) 42 Cal.4th 686, 701 [prosecutor's "needlessly sarcastic" comment not misconduct]; People v. Zambrano (2007) 41 Cal.4th 1082, 1154-1155 [prosecutor's use of "pungent language" not improper where "[i]t was clear the prosecutor's comment was aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally"], disapproved of on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) The trial court instructed that nothing the attorneys say is evidence. (CALCRIM No. 222.) It is presumed that the jury understood and followed the instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.) Appellant makes no showing that the prosecutor's remarks "infected the trial with such unfairness as to make the conviction a denial of due process, or that, in violation of state law, the prosecutor used deceptive or reprehensible methods to persuade the jury. Nor has defendant shown 'a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citation.]" (People v. Harrison (2005) 35 Cal.4th 208, 256-257.)
The jury was also instructed that "[y]ou alone must judge the credibility or believability of the witnesses" (CALCRIM No. 226), and the prosecution must prove that the killing was first degree murder and not in self-defense (CALCRIM No. 521).
Instruction on Contrived Self-Defense
Appellant contends that the trial court erred in instructing: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.) Appellant argues that the instruction was not supported by the evidence and violated his constitutional right to jury trial and due process. A trial court, however, has the duty to instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Rangel (2016) 62 Cal.4th 1192, 1223.) Here, the evidence showed that appellant drove back to the strip mall, stalked Camper for 10 minutes, confronted Camper at the bus stop, and shot him.
Appellant requested an instruction on imperfect self-defense because the evidence was conflicting on whether Camper had a firearm. The trial court said it would instruct on imperfect self-defense (CALCRIM No. 571) and contrived self-defense (CALCRIM No. 3472), and that "it's up to a jury to decide whether it's truly a provocation or not." "[T]he jury is free to pick and choose what parts of the testimony they find credible and what parts they don't." That is a correct statement of the law. (People v. Rodriguez (2018) 26 Cal.App.5th 890, 902 [jury may pick and choose from differing testimony to construct its version as to how events occurred]), as the CALCRIM No. 3472 instruction on contrived self-defense. (People v. Eulian (2016) 247 Cal.App.4th 1324, 1334, citing People v. Enraca (2012) 53 Cal.4th 735, 761.) "The concepts of perfect and imperfect self-defense are not entirely separate, but are intertwined." (People v. Valencia (2008) 43 Cal.4th 268, 288.) The evidence was overwhelming. No reasonable jury would have found that appellant acted in self defense. Appellant's remaining arguments have been considered and merit no further discussion. The errors cited by appellant were not prejudicial and did not have any cumulative effect. (People v. Hardy (2018) 5 Cal.5th 56, 106.)
Appellant's trial attorney argued: "If the jury believes my guy thought [Camper] had a gun but the proof is he didn't have a gun, that would lead to imperfect self-defense and then the instruction applies. [¶] It's not whether the DA wants to argue it. It's not even whether I want to argue it." --------
Disposition
The judgment of conviction is affirmed. The Attorney General concedes that the trial court failed to award 1,070 days presentence custody credits. (§ 4019.) We accordingly modify the sentence to reflect that appellant was awarded 1,070 days custody credit and affirm the judgment as modified. (§ 1260.) The trial court is directed to prepare an amended abstract of judgment reflecting the modification and forward a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
PERREN, J.
David R. Worley, Judge
Superior Court County of Ventura
Mark D. Lenenberg, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.